Skip to main content

Is it legal to ask if you are under 40 on a job application

Riverside, CA |

many applications have a place to check if you are under 40

Attorney Answers 5

  1. Best answer

    The Age Discrimination in Employment Act makes it illegal for employers to discriminate against any employee or applicant for being 40 years of age or older. However, it is not illegal to simply ask an applicant's age.

    This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

  2. This is a very high risk question. If the purpose of the question is to weed out applicants who are over 40, it would be illegal. If you are over 40 and believe you have been denied a job because of this question, it would be evidence of age discrimination.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.

  3. According to the Department of Fair Employment and Housing Fact Sheet, it would not be appropriate. Accordingly, a complaint could be filed with DFEH over such a question. Here's a link to the DFEH Fact Sheet...

    THESE COMMENTS MUST NOT BE CONSIDERED LEGAL ADVICE. Comments made on websites such as are provided for information purposes only, and you should not base a decision to act or refrain from acting based upon this answer. The only way to determine how the law may apply to your particular situation is to consult with an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation. . That relationship is established by the execution of a written agreement for legal services. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.

  4. I agree with my colleagues and it would depend on whether the question was used to discriminate against those over 40, which is prohibited. Discriminating against younger employees based on age, however, is permissible.

  5. Lots of employers -- public and private, sophisticated and not, large and small -- ask for this info and info about race and gender and national origin, too. They use the aggregate data obtained in response to track whether the company is meeting its EEO goals and objectives; to make reports of EEO category gains and objectives to the EEOC and that are required for certain governmental contracts and grants; to craft and choose and fine-tune employment benefits; and multiple other legitimate and lawful purposes.

    It is sometimes tempting for laypersons and attorneys alike to see the buzzword or identify the subject issue and generalize from that to "you have a great claim." But great cases and sound claims aren't based in that kind of "close enough is good enough" generalizing. Law is not a game of "gotcha." If it was that easy, anyone could do it.

    Discrimination on certain bases is unlawful but in no circumstance is discrimination established or proven without evidence of discriminatory action. A certain care and precision in factual analyses is essential to properly evaluate even the most simple of situations.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

Employment topics

Top tips from attorneys

What others are asking

An attorney can help.

Post a question and get free legal advice from attorneys.

Ask a Lawyer

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics